Criminalisation of Triple Talaq is irrational from Constitutional point of view

First and foremost we have to figure out what conduct can be made a crime?

One of the most influential thinkers in the history of liberalism, John Stuart Mill, who contributed widely to social theory, political theory, and political economy, wrote in his conception of liberty that if a misconduct is harmful to any individual or harmful to the society, then it becomes a crime. He said, “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

This principle is also known as the harm principle.

Now let’s analyse the triple talaq matter: As we all know that a five-judge constitution bench of the Supreme Court termed the practice of triple talaq as unconstitutional void and illegal with 3:2 majority, which means that the marriage will not be dissolved, subsequently there is *no harm caused* therefore making triple talaq a crime according to the harm principle is not at all rational.

The other issue of triple talaq is: How we fix the three-year punishment and from where this three-year punishment thing has come? If we look at the Indian Penal Code which is the general law of the land, it tells us about the criminal policy of the country.

We have three years of imprisonment for the major offences like 1) Sedation, 2) Rioting, being armed with a deadly weapon (Section 148 of IPC)

3) Promoting enmity between classes of people (Section 153A)

4) Making, buying or selling the instrument for the purpose of counterfeiting Indian coins (Section 233)

5) Import and export of counterfeit coins (Section 237)

6) Malicious insulting of any religion or religious belief of any class (295A blasphemy) for these major crimes we have three year imprisonment, these crimes cannot be compared with an inconsequential three words uttered by a man which doesn’t dissolve a marriage; in fact, if we look at IPC, we have less than three years of punishment for several major crimes Let’s cast a cursory glance at these crimes :

1) Rioting whenever force or violence is used by unlawful assembling – imprisonment of only two years.

2) Bribery (such a major crime)- imprisonment of only one year.

3) Negligently doing any act known to be likely to spread infection of disease which is dangerous to life – punishment of only six months.

4) Causing the death of any human being by rash and negligent act – imprisonment of only two years.

5) Destroying damaging or defiling a place of worship or sacred object with intent to insult the religion of any class – punishment of only 2 years.

6) Undue influence in the election – imprisonment of only two years.

7) False statement in connection with the election – no imprisonment only fine.

8) Illegal payment in connection with the election – only a fine of Rs 500.

9) Adulterating food or drink intended for sale so as to make the same noxious – imprisonment of only 6 months or fine of Rs 1000 .

10) Dealing with explosive substance- imprisonment of only six months and fine of Rs 1000.

11) Public nuisance- fine of only Rs 200.

12) Forgery – imprisonment of only two years.

13) Wrongfully restraining any person – imprisonment of only one month or fine of Rs 500.

14) Assault or use of criminal force – imprisonment of only three months or fine of Rs 500 or both.

15) Criminal trespass – imprisonment of only three months.

16) Cheating 420 – imprisonment of only one year.

These punishments undoubtedly and certainly state that there is no rationality in providing thee years imprisonment on triple talaq as we have less than three years imprisonment for more severe and dreadful crimes, therefore, this three-year imprisonment is irrational and arbitrary.

Now let, us look at the impact and ramifications of this: if the man who has uttered divorce three times is sent to jail for three months how will he maintain and sustain his household, how about his children who will look after them with respect to the monetary matters?

Therefore I request, Let us not take matrimonial matters to the *criminal courts*.

If we really want to tackle this menace even under civil law imprisonment is possible. Since the Supreme Court has said that triple talaq is illegal anyone who gives triple talaq, in my opinion, commits civil contempt of the court.

Lawmaking is a serious business it should not be politicised; criminal law is an instrument of state and it should be used in rarest of rare cases; it should be used only when the harm to the individual and to the society cannot be tackled by other branches of civil law.

By-M. Arshad Delhiwala

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